An evenly split Pennsylvania Supreme Court recently upheld the Superior Court’s 2011 finding that the Pennsylvania Rules of Civil Procedure prohibited an orthopedic group from supplying correspondence between a plaintiff’s attorney and the physician who treated the plaintiff and then was later retained as an expert witness. The six Supreme Court justices who participated in the decision cited tension between the attorney work-product privilege scope and expert witness disclosures; however, they were divided as to whether the procedural rules supported a clearly defined—or “bright-line”—rule barring discovery of such communications. As a result, the Superior Court’s decision stands.

The underlying case, Barrick v. HolySpiritHospital of the Sisters of the Christian Charity, et al., involved a plaintiff who allegedly suffered a spinal cord injury when a chair in the hospital’s cafeteria collapsed beneath him. The plaintiff sought treatment from an orthopedic surgeon who he later hired as his trial expert. During the course of discovery, the co-defendant management company subpoenaed the surgeon’s office for the plaintiff’s medical records. The office informed the management company that it would produce the records but would withhold information unrelated to the plaintiffs’ treatment. The management company filed a motion to compel the office to produce the entire file. In response, the office argued that the withheld materials were subject to protection under Pa.R.C.P. 4003.3 as trial preparation material. The trial court judge reviewed the material privately in chambers (known as in camera review) and subsequently allowed its release to the defendant.

Plaintiff appealed the decision to the Superior Court. Initially, a three-judge panel agreed with the trial court judgment. Plaintiff sought an en banc reargument and, on November 23, 2011, the Superior Court reversed the panel’s decision. Newly appointed Supreme Court Justice Correale Stevens had sat on the en banc panel and thus recused himself when the case was brought before the Supreme Court in August 2013.

Justice Max Baer authored an opinion joined by Justices Debra Todd and Seamus McCafferey in support of the Superior Court’s decision. Justice Baer wrote that Pennsylvania Rules of Civil Procedure 4003.3 and 4003.5 “attempt to balance the competing policies of promoting the truth-determining process through liberal discovery but also protect attorney work product from discovery to encourage efficient and effective client representation.” As such, “it is preferable to err on the side of protecting the attorney’s work-product by providing a bright-line rule barring discovery of attorney-expert communication.” A bright-line rule is also supported by a proposed amendment from the Court’s Procedural Rules Committee to Rule 4003.5. Justice Baer highlighted this proposal for its stance that Pennsylvania practice does not typically encompass seeking these communications to begin with. Further, the information sought could be procured through interrogatories and, if appropriate, upon cause shown to the trial courts. Expert witnesses may also be cross-examined about their opinions.

Concerning the in camera process to weed out discoverable substantive facts, Justice Baer wrote that failing to establish a bright-line rule would lead to unnecessary delay in the discovery process. “Moreover, the in camera review process could potentially result in the erroneous disclose of attorney-expert witness correspondence, which will not only invade protected core work product but, in a worst case scenario, would also constitute prejudicial error necessitating an appellate court’s grant of a new trial with all the inefficiencies, burdens, and costs attendant thereto.”

Justice Thomas Saylor, writing for the dissent, disagreed and wrote that, “if a communication contains a mixture of such work product and other material, both sets of policy objectives are served if that portion of the document consisting of core work-product is protected, while the remainder is subject to discovery.” He held that the Pennsylvania Rules of Civil Procedure allow for broad discovery and “simply do not establish a categorical prohibition against discovery of all correspondence between an attorney and an expert.”